State v. Gray ( 1998 )


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  •             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE              FILED
    JANUARY 1998 SESSION
    March 24, 1998
    Cecil W. Crowson
    Appellate Court Clerk
    STATE OF TENNESSEE,               )
    )   C.C.A. NO. 01C01-9702-CC-00058
    Appellee,             )
    )   LAWRENCE COUNTY
    VS.                               )
    )   HON. JAMES L. WEATHERFORD,
    WILLIAM HOWARD GRAY,              )   JUDGE
    )
    Appellant.           )    (Probation Revocation)
    FOR THE APPELLANT:                    FOR THE APPELLEE:
    SHARA A. FLACY                        JOHN KNOX WALKUP
    Public Defender                       Attorney General & Reporter
    DANIEL J. RUNDE                       GEORGIA BLYTHE FELNER
    Asst. Public Defender                 Counsel for the State
    P. O. Box 1208                        John Sevier Bldg.
    Pulaski, TN 38478                     425 Fifth Ave. North
    (On Appeal)                        Nashville, TN 37243-0493
    JAMES DANIEL FREEMON                   MIKE BOTTOMS
    West Gaines St.                        District Attorney General
    Lawrenceburg, TN 38464
    (At the Hearing)                     JAMES G. WHITE
    Asst. District Attorney General
    P. O. Box 279
    Lawrenceburg, TN 38464
    OPINION FILED:____________________
    AFFIRMED
    JOHN H. PEAY,
    Judge
    OPINION
    The defendant was indicted on June 8, 1993, on charges of incest and
    statutory rape. He pled guilty to the incest charge, and the statutory rape charge was
    dismissed. By agreement, the defendant received a sentence of five years in the
    Department of Correction. This sentence was fully suspended and the defendant was
    placed on immediate probation.
    On August 19, 1996, a revocation warrant was issued and following a
    hearing on September 16, 1996, the trial court revoked the defendant’s probation and
    ordered him to serve the entire sentence. The defendant now appeals this revocation
    contending that the trial judge abused his discretion in revoking probation; that the trial
    judge erred in “engaging in extrajudicial proceedings or by and through engaging in
    collateral considerations”; in revoking the defendant’s probation when he relied on the
    advice of counsel; and that T.C.A. § 36-3-101, which prohibits marriage by a person to
    his adopted sister, is unconstitutional. We do not agree with the defendant’s contentions
    and, therefore, affirm the judgment below.
    When a trial judge finds that a petitioner has violated the conditions of his
    or her probation, the trial judge has the authority to revoke probation. See T.C.A. § 40-
    35-310. In this case, it is clearly within the trial court’s discretion to revoke a defendant’s
    probation and order the original sentence to be served. See State v. Duke, 
    902 S.W.2d 424
    , 427 (Tenn. Crim. App. 1995).
    The violation warrant issued in this case alleged that the defendant failed
    to obtain the consent of his probation officer before leaving the county or state of his
    2
    residence, failed to make a full and truthful report as required, failed to obey the laws, and
    failed to carry out the instructions of the probation officer. At the conclusion of the
    hearing, the trial judge found that the defendant had left the state without permission, had
    married the victim in violation of the probation officer’s instructions, had continued to have
    contact with the victim after having been directed against such contact, and had failed to
    comply with the TBI registry for one quarter.
    There is little, if any, dispute concerning the evidence introduced at the
    hearing. The defendant was convicted of incest and directed by the probation officer to
    have no further contact with the victim. The defendant, relying upon the advice of his
    attorney, went with the victim to the state of Mississippi and they were married.
    Apparently, Mississippi law allowed the marriage of a brother to his adopted sister but the
    same marriage is prohibited by the state of Tennessee. See T.C.A. § 36-3-101. The
    proof also showed that the defendant’s attorney had talked with the probation officer
    about the possibility of the defendant going to Mississippi to engage in marriage with the
    victim. However, there was no indication that the probation officer consented or objected
    to this plan. The proof further showed that the defendant had been directed to have no
    contact with the victim and that this directive had been violated on a regular basis as the
    defendant and the victim rode together to work each day. The defendant, at the time of
    his reports, failed to reveal this relationship to the probation officer.
    We find it unnecessary to address the defendant’s issue concerning the
    constitutionality of the statute prohibiting marriages within a certain degree of relationship.
    The defendant left the state of Tennessee without permission from his probation officer, 1
    and he failed to truthfully report to his probation officer his continued association with the
    1
    We note that our law prohibits a probationer from leaving the jurisdiction of his probation officer
    without the expres s perm ission of th e trial judge. See T.C.A. § 40-35-303(h).
    3
    victim. The defendant’s subsequent marriage to the victim, even if valid in the state of
    Mississippi, does not absolve the defendant of these violations of probation.
    For the reasons stated above, we find that the trial judge did not abuse his
    discretion in revoking the defendant’s probation. This finding makes it unnecessary to
    answer the other issues raised in the defendant’s brief. We affirm the judgment of the
    court below.
    _______________________________
    JOHN H. PEAY, Judge
    CONCUR:
    ______________________________
    DAVID H. WELLES, Judge
    ______________________________
    JERRY L. SMITH, Judge
    4
    

Document Info

Docket Number: 01C01-9702-CC-00058

Filed Date: 3/24/1998

Precedential Status: Precedential

Modified Date: 3/3/2016